The five-member commission that oversees the U.S. Nuclear Regulatory Commission has denied a petition for review from the Calvert Cliffs Nuclear Power Plant unit 3 applicant regarding a regulatory board’s license denial.

On Monday morning, the five-member commission upheld an earlier Atomic Safety and Licensing Board ruling on the Calvert Cliffs 3 new nuclear reactor application, which had denied UniStar Nuclear Energy LLC’s application because of its failure to meet NRC foreign ownership requirements for U.S. power reactors.

On Aug. 31, the three-judge ASLB denied a license for the proposed Calvert Cliffs unit 3 project because UniStar was bought out by Electricite de France in November 2010, resulting in 100-percent French ownership of UniStar.

In October, UniStar filed a petition with the five-member presidentially appointed commission that oversees the NRC for an appeal of the ASLB’s August decision.

The commission states in the decision that it denies the petition for review of the ASLB decision on two grounds: First, UniStar’s petition does not relate to the application, but rather to the regulations concerning foreign ownership; the decision states that UniStar’s “fundamental objection is not to the [ASLB’s] decision on its current application, but rather to this agency’s policy regarding foreign ownership.”

Secondly, the review was denied because of the “uncertainty” surrounding the application, the decision states. “The record reflects that [UniStar and Calvert Cliffs 3 Nuclear Project LLC] continue to look for a U.S. partner, and have not amended their application. Given the current status of the application, a review of the [ASLB’s] decision now essentially would constitute an advisory opinion, a practice we disfavor,” the decision explains.

In a written statement released Monday, UniStar spokeswoman Kelly Sullivan said, “UniStar thanks the Nuclear Regulatory Commission for its consideration of the Petition for Review. We look forward to receipt of the revised guidance on foreign ownership, control and domination and hope to participate in that process. In the meantime, we will continue to support the NRC’s ongoing review of the Calvert Cliffs 3 application.”

Although the petition for review was denied, the decision states that the commission is aware that “review of the combined license application remains ongoing on matters other than foreign ownership.” In addition, the commission notes in the decision, if UniStar is able to secure a U.S. partner and resolve foreign ownership issues, then the application could be revised.

NRC spokesman Neil Sheehan said Monday morning that the commission is “not advising staff to halt” review of the application, but it does “acknowledge that it won’t proceed any further” until the foreign ownership issue is resolved.

Also in the decision, the commission states that a review of foreign ownership requirements is needed by NRC staff.

“But we agree that, with the passage of time since the agency first issued substantive guidance on the foreign ownership provision of [the Atomic Energy Act], a reassessment is appropriate,” the commission states in the decision, in which it also directs NRC staff “to review issues relating to foreign ownership and recommend whether the Commission should consider modifications to agency guidance or practice.”

Sheehan explained that at some point the commission will set guidelines for NRC regarding the review, but there is no timeline for proceeding with the review or for its completion.

He said the commission and staff would expect public, as well as legal, input during the review to help determine if any changes are needed.

In November 2008, four intervenors, Beyond Nuclear, Nuclear Information and Resource Service, Public Citizen and Southern Maryland Citizen Alliance for Renewable Energy Solutions, petitioned the NRC, opposing UniStar’s application on the contention of foreign ownership.

Paul Gunter, the director of nuclear reactor oversight with Beyond Nuclear, said in a press release Monday, “This decision could not be more timely, coming on the second anniversary of the [March 11, 2011] Fukushima nuclear accident and on the heels of the recent decision of the Maryland State Legislature to adopt and invest in the development of offshore wind energy.”

In the release from Beyond Nuclear, an environmental advocacy group, the company “hailed” the commission’s decision to deny the appeal.

Gunter said in the release, “The nuclear retreat continues unabated. Everywhere you look, new nuclear projects are either being canceled, or are encountering cost over-runs, and aging reactors are failing and permanently closing.”

Fellow intervenor NIRS said in a press release Monday that the decision marks the first time in history that the NRC commission upheld the denial of a license for a commercial nuclear reactor and only the second time a license for a commercial nuclear facility has been denied.

“Of course, the Commissioners really had no choice,” Executive Director of NIRS Michael Mariotte said in the release. “The Atomic Energy Act is clear: foreign ownership of U.S. nuclear reactors is illegal. And, in any case, this reactor was never going to be built.”

Mariotte continued in the release, “No one wants to build a reactor like that in a deregulated market like Maryland. Indeed, Maryland already has moved on” with the approval of offshore wind energy.